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HomeMy WebLinkAbout1563 Bashore In Re: David Bashore, : File Docket: 09-011 Respondent : X-ref: Order No. 1563 : Date Decided: 10/19/10 : Date Mailed: 10/22/10 Before: John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” An Answer was not timely filed. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Bashore, 09-011 Page 2 I.ALLEGATIONS: That David Bashore, a public official/public employee in his capacity as a Manager of Radnor Township, Delaware County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Radnor Township Board of Commissioners; and when he directed Township staff to issue annual leave payments to him that were not approved by the Board of Commissioners and were not part of his compensation package. II.FINDINGS: 1. David Bashore (Bashore) served as the Manager of Radnor Township (Township), Delaware County, from November 13, 2000, to April 13, 2009. a. The Board of Commissioners appointed Bashore Manager on November 13, 2000. b. Bashore served as Assistant Township Manager from January 1990 to November 13, 2000. 1. Bashore was appointed acting/interim Township Manager prior to his selection as Township Manager. 2. Bashore was also employed by the Township as Finance Director and Assistant Township Manager prior to his appointment as Manager. a. Bashore served as Finance Director from approximately November 4, 1987, until or about January 1990 when he was promoted to Assistant Township Manager. 1. Bashore continued duties as Finance Director after his appointment as Assistant Manager. 2. Bashore reported to then Manager Robert Crofford. 3. Radnor Township is a First Class Township operating under a Home Rule Charter. a. The Township has adopted an Administrative Code (Code) which supplements the Home Rule Charter. 4. Radnor Township is governed by a seven Member Board of Commissioners (Board). a. Pursuant to the provisions of the Code, the Board has the ultimate responsibility for “establishing the financial policies of the Township, for developing and approving the budget and for levying taxes” (Code §7.02). 5. The Board has hired a Manager to implement the policies which the Board has adopted and to supervise the daily operations of the Township. 6. Article V of the Radnor Township Home Rule Charter (Charter) provides for the appointed position of Township Manager as follows: a. SECTION 5.01 APPOINTMENT AND COMPENSATION: The Township Manager, hereinafter referred to as the “Manager,” shall be appointed by a majority vote of the total membership of the Board to serve at the pleasure of Bashore, 09-011 Page 3 the Board. The Board shall fix the compensation of the Manager. b. SECTION 5.02 QUALIFICATIONS: The Manager shall be selected on the basis of managerial and administrative qualifications including education, training, and experience related to the duties of the position. The Manager need not be a resident of the Township or the Commonwealth of Pennsylvania at the time of appointment, but must become a resident of the Township within one year after appointment unless exempted from this requirement by resolution of the Board. The Manager shall devote full time to the affairs of the office. 7. Article V, Section 5.03 of the Charter details the powers and duties of the Manager as follows: SECTION 5.03 POWERS AND DUTIES OF THE MANAGER: The Manager shall be the chief administrative officer of the Township. The Manager shall be responsible to the Board for the execution of all policies established by it and for the administration of all affairs of the Township placed in the Manager’s charge. The powers and duties shall include, but not be limited to, those which follow: A. Direct, supervise, and be responsible for the administration of all departments and offices of the Township except as otherwise provided in this Charter or by law. B. Implement and enforce all Township ordinances, including the Administrative code and all laws applicable to the operation of the Township, consistent with the provisions of this Charter. C. Appoint, and for stated cause, suspend or remove, department heads and other Township employees under the Manager’s direct and general supervision, subject, however, to formal approval by a majority vote of the total membership of the Board when required by this Charter. The Manager shall have ultimate responsibility for the appointment, suspension, or removal of all other Township employees under the personnel rules and regulations established by the Administrative Code or other ordinances in accordance with this Charter. D. Attend meetings of the Board, participate in discussions, and assist the President of the Board in the preparation of agenda. E. Negotiate and sign contracts for the Township subject to the provisions of this Charter and of the Administrative Code. F. Make recommendations to the Board to aid and assist it in the formulation of policy and keep the Board and public informed concerning the conduct of Township affairs. G. Provide such reports and information as required by this Charter and as may be requested by a majority of the members of any appointed Township Board, Commission, Authority, or any elected Township official. H. Take such actions as are necessary to protect the life, health, property, or peace of the residents of the Township in the event of a public emergency. I. Report to the board any proposed major changes in land use with an analysis of the effect on the annual budget and the capital program of the Township. J. Request prompt inspection, investigations and preparation of tax duplicates by Delaware County for all new construction and major building improvements as soon as such construction or improvements are subject to taxation. 8. The Township Administrative Code (Code) further delineates the powers and duties of the Manager as follows: Bashore, 09-011 Page 4 SECTION 5-19B. Powers and Duties of the Manager. The Manager shall be the chief administrative officer of the Township and shall have those powers and duties prescribed by law, the Charter and ordinance, including the power and duty to: (1) Administer and enforce those personnel policies and regulations required by the Charter, by law, by ordinance and by resolution of the Board, except in those specific instances where other provisions for administration and enforcement have been specified by ordinance or contract. (5) Prescribe such administrative rules, practices and procedures as shall be deemed necessary or expedient for the conduct and operation of administrative departments and revoke, suspend or amend any rules practices or procedures by whomever prescribed, unless contained in an ordinance, a contract or resolution adopted by the Board, and make such rules, practices and procedures available to affected employees and for public inspection. 9. Bashore began serving as acting Township Manager in or about the spring of 2000 following the death of Crofford. a. Crofford passed away on March 31, 2000. b. Bashore served as interim Manager until his appointment as Manager by the Board on November 13, 2000. 10. Effective January 1, 2001, Bashore entered into an employment agreement with the Township detailing the terms and conditions of his service as Manager. a. The agreement sets forth various compensation and benefits to which Bashore was entitled. b. The employment agreement was drafted in part by the Township and in part by Bashore and was based in large part on Crofford’s employment agreement with the Township and a model employment agreement of the International City/County Management Association. 11. Bashore’s Employment Agreement with the Township provided, in part, the following: Section 2. Duties and Code of Ethics A. The Employer hereby agrees to employ David A. Bashore as Township Manager to perform the functions and duties specified in the Radnor Township Home Rule Charter and the Administrative Code, and to perform other legally permissible and proper duties and functions as the Board shall from time to time assign. B. Inasmuch as the Employee is an active member of and participant in the International City/County Management Association (ICMA), the Code of Ethics promulgated by ICMA is incorporated herein and attached hereto, and by this reference is made a part of the Agreement. That said Code of Ethics, in addition to provisions of the Charter and the Code, shall furnish principles to govern the Employee’s conduct and actions as the Township Manager. Section 5. Compensation A. The Employer agrees to pay the Employee for his services rendered Bashore, 09-011 Page 5 pursuant to this Agreement an annual base salary of $105,000.00, effective as of January 1, 2001, payable in equal installments at the same time as other employees of the Employer are paid. B. In addition, the Employer agrees to increase said base salary, lump sums, and/or other benefits of the Employee in such amounts as to such extent as the board may determine that it is desirable to do so on the basis of an annual performance evaluation and salary review of said Employee, in accordance with Section 6 herein, made at the same time and in the same manner as similar consideration is given to other employees generally. C. The Employer also agrees to pay the Employee longevity pay and other special pay adjustments at the same rate and at the same time as similar consideration is given to other civilian employees generally. Section 6. Performance Evaluation and Goals and Objectives A. The Board shall review and evaluate the performance of the Employee at least once annually by December 31. Said performance reviews and evaluations shall be in accordance with specific criteria developed jointly by the Employer and the Employee and shall be kept confidential by parties to the extent permitted by law. Said criteria may be added to or deleted from as the Board may from time to time determine appropriate, in consultation with the Employee. Further, the President of the Board shall provide the Employee with an initial six-month review and subsequent annual evaluations by the Board and provide an adequate opportunity for the Employee to discuss his evaluation with the Board in a timely manner. B. In accordance with the annual review and evaluation, the Board and the Employee shall jointly define job performance goals and objectives which they determine necessary for the property [sic] operation of the Township and in the attainment of the Board’s policy objectives. The Board shall further establish a relative priority among those various goals and objectives in writing, and they shall generally be attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided therefore. 12. Bashore’s employment contract was not formally approved by a vote of the Board at a public meeting. a. The contract was signed by then Board President James Pierce and then Board Vice-President Harry Mahoney. b. The contract was discussed and approved during an Executive Session of the Board on or about February 26, 2001. The minutes of the Board’s March 12, 2001, public meeting indicate that all Commissioners were present at the February 26, 2001, Executive meeting. c. Some Board Members were familiar with the provisions of Bashore’s employment agreement with the Township. 1. All Board Members taking office after 2001 claim they were unaware of Bashore’s contract. 2. Portions of Bashore’s agreement were outlined in annual management representation letters sent to the Board President during all years Bashore was Manager. Bashore, 09-011 Page 6 13. Bashore received annual salary increases as Township Manager pursuant to the provisions of his employment contract. a. Bashore’s starting salary as Acting Manager in 2000 was $101,831.00. 1. It was increased in 2001 to $105,000.00. b. Bashore received annual increments increasing his salary as follows: YearIncrement PercentageSalary Increase to 1/1/01 3.1% $105,000.00 1/1/02 4.0% $109,200.00 1/1/03 4.0% $113,568.00 1/1/04 2.5% $116,407.00 1/1/05 2.0% $118,735.00 1/1/06 3.0% $122,347.00 1/1/07 4.5% $127,896.00 1/1/08 4.0% $132,536.00 1/1/09 0.0% $132,536.00 14. Part of Bashore’s duties as Manager included setting the compensation of subordinate Township employees, not covered by a labor agreement. a. SECTION VI 6.01 of the Home Rule Charter provides that “the compensation of department heads and Administrative Officers shall be fixed by the Manager subject to the approval of the Board.” 15. In his capacity as Township Manager, Bashore had overall supervisory responsibility for the Township Finance Department. a. The Finance Department is supervised by the Finance Director who serves as the Chief Financial Officer of the Township. b. Duties and responsibilities of the Finance Department include, in part, the following: ? Assist the Manager and department heads in the preparation of the proposed Township budget and in the presentation of the proposed budget to the Board. ? Supervise the encumbrance and expenditure of Township funds. ? Supervise the Township payroll and the maintenance of Township payroll records. c. Bashore had overall responsibility for the development of the Township budget submitted to the Board for review, discussion, and ultimate approval. 16. As Manager, Bashore would annually present a proposed budget to the Board. a. Bashore participated in the preparation of the annual budgets in consultation with the directors of various Township departments. b. As Chief Administrative Officer, Bashore was solely responsible for the Administration Department’s budget, which included anticipated salary expenses. c. Budget discussions with the Board would begin by September of each year. Bashore, 09-011 Page 7 17. Following the Board’s adoption of the 2006, 2007, 2008, and 2009 budgets, Bashore submitted a salary schedule to the Board for the respective year. a. The salary schedule would identify the employee base salary and longevity pay. b. The salary schedule was provided to the Board by Bashore. c. The actual budget contained a line item for total salaries for each specific department and a separate line item for longevity pay. 1. The line item for regular salaries of the Administration Department was 4010 and longevity was 4030. 18. During his tenure as Manager, Bashore authorized lump sum payments to some Township employees. a. The payments occurred annually from 2001 to 2008, during Bashore’s tenure as Manager. b. At the time he was authorizing lump sum payments to subordinate employees, Bashore authorized and issued similar payments to himself. 19. The lump sum payment program was implemented by Bashore, in his capacity as Finance Director, and then Township Manager, Robert Crofford. a. The lump sum payment program has been in existence since at least 1998. b. Initially Bashore and Crofford were the only Township employees to receive these types of payments. c. Over the years, the number of employees receiving a lump sum payment as a management practice was increased. d. The amount of the lump sum payments to Bashore increased after he became Manager, as his salary increased. 20. Most members of the Board were not aware that lump sum payments were being made to employees, including Bashore. a. Any information submitted to the Board regarding employees compensation was submitted by Bashore. b. Bashore did not specifically advise the Board in any material forwarded to the Board that lump sum payments were being made or anticipated being made to himself or other employees. However, Bashore asserts that he did give all Board Members copies of the annual management representation letters. 21. The lump sum payments that Bashore received, along with other Township employees, were not specifically identified in the compensation expenses approved by the Board as part of the annual budgeting process. 1. Funding for the lump sum payments was provided in the adopted budgets. 22. Bashore termed the payments special lump sum payments to distinguish them from Bashore, 09-011 Page 8 bonuses set forth in §5-60 H (6) of the Code which limited the payments of bonuses to 5% of an employee’s base pay, which Bashore asserts he believed had been intended to apply only to employees in a collective bargaining unit. a. Bashore’s lump sum payments he approved for himself always exceeded 5% of his base pay. b. §5-60 H (6) of the Code provides as follows: An employee who has demonstrated consistently outstanding performance or who has made a unique or unusually meritorious contribution to the Township’s operations may receive, at the Board’s discretion, appropriate commendation and/or a one-time bonus not to exceed 5% of such employee’s current base salary. Such bonus shall not be added to the employee’s base salary. 23. Since 2001 the decision to issue lump sum payments to himself and other employees was made solely by Bashore pursuant to the previously instituted program. 24. Bashore authorized lump sum payments only to certain Township employees. a. The list of employees who received such payments included department heads, managers, supervisors, and other non-union staff, including Bashore’s administrative staff. 1. Bonuses were paid to Bashore’s administrative staff because they were the employees who processed the lump sum payments. a. Bashore asserts that he felt that the employees who received the lump sum payment earned the payments. b. Bashore advised Township employees who received the payments that they were not to say anything, to keep the payments confidential. 1. Bashore would include language on documents authorizing the payments “for your eyes only.” 2. Bashore asserts that the reason that he wanted the lump sum payments to remain confidential was to avoid disruption in the workplace and preserve employee morale. c. From 2004 through 2006 the majority of the payments [were] in amounts ranging from $1,500 to $7,500. 1. A few department heads received a lump sum payment in the amount of $12,500. d. In 2007 and 2008 the lump sum amounts declined because the Township was experiencing some financial problems with budget deficits. 1. The average bonuses in 2007 and 2008 ranged from $2,500 to $5,000. 25. Bashore never sought nor received the express or explicit approval of the Board prior to receiving his annual lump sum payments. Bashore, 09-011 Page 9 a. The Charter provides that the Board fix Bashore’s compensation as Manager. b. Bashore’s employment agreement noted that any increases in salary, lump sums or other benefits be determined by the Board on the basis of annual performance evaluation and salary review. c. Bashore’s employment agreement also provides that the Township was to pay Bashore longevity pay and other special pay adjustments at the same rate and at the same time as similar consideration is given to other civilian employees generally. 26. Bashore’s budgets submitted to the Board did not identify any individual lump sum payments, including those he was authorizing to himself. a. The budgets did not include any line item expenditures identifying lump sum payments to any employee or Bashore. b. Bashore’s providing the budgets in this format made it difficult for the Board to raise questions about payroll in the budget. 1. Payroll schedules Bashore provided to the Board after budgets were adopted did not include lump sum payments. 27. Prior to 2008, Bashore budgeted portions of some employees’ salaries to the Township’s Sewer Fund. a. Bashore, when preparing the Township’s annual budget, would not include lump sum payments as part of salaries to be paid from the Township’s General Fund. 1. Bashore only provided the Board with base salary information that was to be included in the budget and did not list the individual lump sum payments with the base salary information. Therefore, Bashore’s total compensation including the lump sum payments was not reflected in the salary portion of the budget. 2. The salary schedule that Bashore provided to the Board, after a budget was adopted, included employee compensation consistent with each department’s regular salary and wages and longevity pay line items, as requested by the Board. b. Bashore would include in the budget funding for the Sewer Department in the line item miscellaneous expenses. c. In order to adjust actual costs of salaries to include lump sum payments, Bashore would credit some or all employee salaries to the miscellaneous expense line item of the Sewer Fund. 1. Routinely, the Township's payroll technician throughout a given year would charge the regular pay of certain employees, which pay had been budgeted, in part or in whole, to be paid out of the Sewer Fund. d. Bashore affected such transfers through journal entries to Township accounting records. 1. Generally, reclassifying funds between Township accounts is not Bashore, 09-011 Page 10 contrary to generally accepted accounting principles or the Township Code. 28. In 2005 and 2006 Bashore directed specific amounts of money that were reclassified from the payroll account of the general fund to sewer fund that was used to pay all of the bonuses for the township employees of Radnor Township. a. Bashore did not advise the Radnor Township Board of Commissioners that he was reclassifying the money from the general fund to the sewer fund. 1. Bashore asserts that he did not believe that it was necessary to advise the Board that [he] was reclassifying the money because doing so was strictly an administrative function that did not call for the Board to be advised. 2. The majority of the Board did not agree with this position, especially as it related to the funds received by Bashore. b. In 2005, $178,000 was reclassified from the payroll account to the sewer account to pay for the bonuses. 1. The total amount of bonuses paid to township employees including Bashore in 2005 was $178,000. c. In 2006, $102,000 was reclassified from the payroll account to the sewer account to pay for the bonuses. 1. The total amount of bonuses paid to township employees including Bashore in 2006 was $102,000. d. Bashore asserts that the reclassification of funds from the payroll account to the sewer account to pay for the bonuses was done in order to be consistent with the budgets adopted by the Board. 1. The majority of the Board stated that they had no knowledge of the bonuses. 29. The Code required the Board, at a minimum, to reallocate unencumbered balances among departments and/or funds. a. Bashore authorized transactions from the sewer fund to the salary fund through the journal entries. 1. Bashore did not seek Board approval prior to his reallocations of funds. 2. Bashore asserts that at the time he believed that Board approval was unnecessary. a. This was not the belief of the majority of the Board, who stated that they did not approve of the special lump sum payments which were paid from the reallocated funds. 30. Bashore did not seek Board approval in authorizing lump sum payments to himself and other employees, and instead directly provided a list of those receiving payments to the payroll office. Bashore, 09-011 Page 11 a. From 2001 to 2007, Bashore would prepare a list of special lump sum payment recipients and give the list to payroll clerk Ann Grossman. 1. To help ensure confidentiality, the lists were in a sealed manila envelope when given to Grossman by Bashore. 2. The envelopes would be marked “For Your Eyes Only.” b. Grossman would then prepare the lump sum payroll by entering the amount of the lump sum payment for each employee in the payroll system as determined by Bashore. 1. Checks were then prepared by Grossman and returned to Bashore for distribution to employees. c. Bashore advised Grossman the payments were authorized by the Board of Commissioners. 1. The special lump sum payments had not been individually approved by the Board. 2. Bashore asserts that he believed that he had the authority to issue the special lump sum payments. a. This was not the belief of the majority of the Board, who stated that they had no knowledge of, and did not give Bashore the authority to approve, the special lump sum payments. d. In 2008, after Grossman retired, Bashore gave the list to Finance Director Aimee Cuthbertson. 1. Cuthbertson then gave the list to payroll clerk Mary Lou Knepshield who processed the payments. 31. Bashore drafted three policies defining criteria to achieve in order to receive the payments. a. The policies list a date of being prepared on January 17, 2001. b. The policies were not provided to the Township Commissioners until February 16, 2009. c. The policies were not reviewed or approved by the Board prior to being enacted by Bashore. 1. Bashore asserts that he believed at the time that he had the authority to prepare and implement such administrative practices under the Township Code. a. This was not the belief of certain Members of the Board, who stated that the Board never authorized Bashore to implement the Special Pay Adjustment program. d. The three policies created by Bashore were titled as follows: ? Policy 01-01 – Special Pay Adjustments for Employees Other Than Department Heads Who Are Not In A Collective Bargaining Unit Bashore, 09-011 Page 12 ? Policy 01-02 – Special Pay Adjustments for Department Heads ? Policy 01-03 – Special Pay Adjustments for Township Manager e. The criteria in all three policies were developed by Bashore based loosely upon policies originally put into place by Bashore and his predecessor. 32. The policies for employees and department heads included a percentage payment limit of the special pay adjustments as follows: a. Employees: Special pay adjustment not to exceed the maximum amount permitted by Code (currently 5% of base pay). b. Department Heads: Total special payments should not exceed a total of 10% to 12.5% of the employee’s base pay when combined with the special payment pursuant to Policy 01-01. 33. The Special Pay Adjustment (Policy 01-03) for the Township Manager includes the following: The Township Manager (the “Manager”) shall be eligible for a special annual lump sum payment, at his/her discretion and in conformance with applicable provisions of the home Rule Charter, the Administrative Code, and any applicable Employment Agreement, based upon the following criteria and provided that (1) ample funding is provided by the Board of Commissioners (the “Board”) in the budget and (2) a majority of department heads and other eligible employees receive a special payment in the same year: 1. The Manager shall have successfully completed a minimum of 85% of his/her department’s goals and objectives for the just completed year. Goals and objectives that were deferred by the Manager or the Board Shall not be included in this calculation; and/or 2. The Manager’s workload during the just completed year shall have been extraordinarily heavy such that he/she was required to work at least 416 hours in excess of his/her normal work year. Earnings Benchmarks. The annual special payment for the Manager shall be of an appropriate amount such that the following goals are achieved; that is, the Manager’s total earnings should be: ? Between 15% and 30% higher than the Radnor Township Chief of Police; ? No lower than 15% and no higher than the Lower Merion Township Manager; and ? Between 7.5% and 15% higher than the Radnor Township School District’s Business Administrator. The Board may at its sole discretion and at any time change any portion of this policy in consultation with the Manager, except to the extent it would conflict with an applicable Employment Agreement, in which case the applicable provisions in the Agreement would prevail. 34. The special adjustments authorized by Bashore in Policy 01-03 for the Manager includes percentage limits greater than the policies for other employees. 35. Bashore was the Township official responsible for determining if he met the criteria to warrant a special adjustment, the percentage of payment and the total amount. Bashore, 09-011 Page 13 a. Bashore memorialized the criteria on which the special payment would be based, and modeled it after criteria previously put into place by Bashore and his predecessor. b. Bashore did not seek input from the Board nor did he seek approval to implement the policy. 1. Bashore asserts that he did not seek Board input or approval because at the time he believed he had the authority to implement the policy. a. This was not the belief of certain Members of the Board, who stated that the Board never gave Bashore the authorization to implement such a policy. 36. A listing of employees determined as eligible to receive a lump sum payment was annually compiled by Bashore. a. The list would identify the employee, position held and the amount of payment approved by Bashore, among other information. b. Bashore titled the lists Budget/Human Resource Schedule. 1. In 2007 and 2006 Bashore titled the lists “Management Breakdown,” which was a separate spreadsheet within the Budget/Human Resource Schedule. c. The lists also included a date by which Bashore wanted the lump sum payments made. d. The lists were given by Bashore to the payroll technician up until 2007 and to the finance director after that. 1. To preserve confidentiality, the 2007 list contained the following handwritten Bashore note: “Anne, your eyes only! All checks to me please. Thanks.” Signed Dave Bashore. 2. The 2006 list contained Bashore’s written note: “No pension deduction – separate check to DAD (Bashore) Direct Deposit.” a. [To] be consistent with Township pension ordinances, all lump sum payments for all employees excluded deductions for employee pension contributions. 3. To preserve confidentiality, the 2005 list contained the Bashore notation: “Anne – your eyes only.” Approved 3/16/05 signature David Bashore. 4. The 2008 list was initiated as approved by Bashore on 3/31/08. 37. The list was segregated by department as follows: a. General Fund Administration (included Bashore) Information Technology Finance Bashore, 09-011 Page 14 Community Development Police Engineering Public Works/Municipal Building Streets & Highways Parks Maintenance Parks & Recreation b. Sewer Fund 38. Between 2004 and 2008 lump sum payments were made to Township employees, including Bashore. a. Thirty-nine (39) different employees received at least one lump sum payment during this period. b. The recipient of the largest lump sum payment each year after Bashore became Manager was Bashore. 39. The following chart depicts the number of lump sum payments made: 2008 2007 2006 2005 2004 No. of receipts 28 30 20 30 31 Total lump sum $120,750 $117,500 $102,000 $178,000 $197,500 Average payment $4,313 $3,917 $5,100 $5,933 $6,371 Bashore amount $15,000 $15,000 $17,000 $17,000 $17,500 40. Payments were segregated as follows: 2008 2007 2006 2005 2004 Up to $1,000. 1 0 0 1 0 $1,001. to $2,500. 14 15 10 10 6 $2,501. to $3,500. 1 0 0 0 0 $3,501. to $4,500. 4 2 0 0 0 $4,501. to $5,000. 3 11 4 6 12 $5,001. to $7,500. 2 1 4 9 8 $7,501. to $10,000. 0 0 1 1 0 $10,001. to $12,500. 2 0 0 2 2 $12,501. to $14,000. 0 0 0 0 2 Over $14,000. 1 1 1 1 1 41. Bashore authorized the following lump sum payments to him in his role as Acting Manager and then Manager: Total lump sum Percentage of total Year Amount Payments lump sum payments 2000 $ 28,000.00 $ 116,750.00 24% 2001 $ 30,000.00 $ 228,424.00 13.1% 2002 $ 22,000.00 $ 227,631.00 9.6% 2003 $ 18,867.00 $ 233,424.00 8.1% 2004 $ 17,500.00 $ 197,500.00 8.8% 2005 $ 17,000.00 $ 178,000.00 9.6% 2006 $ 17,000.00 $ 102,000.00 16.7% 2007 $ 15,000.00 $ 117,500.00 12.8% 2008 $ 15,000.00 $ 120,750.00 12.4% $180,367.00 $1,521,979.00 Bashore, 09-011 Page 15 a. Once Bashore took over as Township Manager, he increased the lump sum payments made to Township employees and himself. b. Bashore received 11.8% of the bonuses that were issued from 2000 through 2008. 42. Bashore’s bonus payments in comparison to his base pay were as follows: Percentage of Year Bonus Payments Base Pay Bonus Payments to Base Pay 1999 $15,300 $86,553 17.7 % 2000 $28,000 $90,231 31 % 2001 $30,000 $105,000 28.6 % 2002 $22,000 $109,200 20.1 % 2003 $18,867 $113,568 16.6 % 2004 $17,500 $116,407 15 % 2005 $17,000 $118,735 14.3 % 2006 $17,000 $122,297 13.9 % 2007 $15,000 $126,578 11.9 % 2008 $15,000 $131,641 11.4 % a. The gross amount of bonus lump sum payments received by Bashore from 2004 through 2008 was $81,500. 43. Lump sum payments were issued to Bashore as follows: Year Amount Check No. Check Date 2000 $15,000 37336 08/10/2000 2001 $15,000 39793 01/05/2001 2001 $15,000 40690 03/02/2001 2002 $17,000 45686 01/04/2002 2002 $ 5,000 50135 10/01/2002 2003 $18,867 51964 01/29/2003 2004 $17,500 59009 03/12/2004 2005 $17,000 65450 03/25/2005 2006 $17,000 71040 03/02/2006 2007 $15,000 76344 01/31/2007 2008 $15,000 83154 04/04/2008 a. Bashore, and certain other employees, received two (2) lump sum payments in 1999, 2000, 2001 and 2002. 44. Bashore received a lump sum payment on January 21, 2000, in the amount of $13,000. a. Crofford, although ill, was still serving as Manager. 45. After Bob Crofford’s death on March 31, 2000, and while Bashore was serving as Acting Township Manager, Bashore authorized another set of lump sum payments. a. Bashore’s payment, issued on August 10, 2000, was in the amount of $15,000. 46. In 2001 Bashore authorized, and personally received, two (2) lump sum payments. a. Bashore authorized and received a lump sum payment on January 5, 2001, Bashore, 09-011 Page 16 in the amount of $15,000 and another lump sum payment on March 2, 2001, in the amount of $15,000. 1. The effective date of Bashore’s employment contract as Township Manager was January 1, 2001. 47. In 2002 Bashore authorized and received two (2) bonuses. The first was in the amount of $17,000 and received on January 4, 2002. The second was in the amount of $5,000 and received on October 1, 2002. 48. The Board did not expressly approve any of the lump sum payments Bashore awarded to himself from 2000 to 2002. 49. Bashore maintained a joint checking account with his wife, Kelly Bashore, at Wachovia Bank. 50. The bonus lump sum payments Bashore received from 2004 through 2008 after deductions were paid were as follows: Date Check Number Amount 03/12/2004 59009 $12,283.25 03/25/2005 65450 $11,032.30 03/02/2006 71040 $11,082.30 01/31/2007 76344 $10,424.86 04/04/2008 83154 $10,508.50 a. The total net amount received by Bashore for the bonus lump sum payments he was paid from 2004 through 2008 totaled $55,331.21. 51. In 2006 and 2007 Bashore directed that he be issued other payments from the Township that he did not classify as lump sum payments. a. Bashore directed payroll technician Anne Grossman and Finance Director Aimee Cuthbertson to issue the payments to him. b. The payment directed by Bashore in 2006 was identified by him as for personal leave. 52. On December 10, 2006, Bashore sent an e-mail to Anne Grossman directing her to issue him an extra 2 weeks (70 hours) pay from his personal leave balance. a. Bashore received additional compensation under payroll code 045 for 70 hours of pay that totaled $5,575.22. 1. Pay code 045 is the code identified by the Township as comp pay. 2. Bashore received the compensation as part of check # 75669 on December 28, 2006, in the amount of $7,303.32. b. Bashore’s employment agreement did not specifically provide for any comp payments. 53. On October 24, 2007, Bashore sent an e-mail to Aimee Cuthbertson, then the Finance Director with the subject line, “For your eyes only please” that included the following: “Under the terms of my employment agreement, I’m allowed a special Bashore, 09-011 Page 17 payment each year equal to two weeks’ pay. While I don’t take this most years, I’d like it this year. So please have Mary Lou cut a check for me next week, separate from next week’s regular pay if possible – equal to a regular bi-weekly pay – but don’t take out any deferred comp contributions, and change my accumulated vacation leave two weeks. This should not be direct deposited; it should be on a payroll check payable to me. Please keep this email as part of this special pay’s backup for next year’s audit. Any questions, let me know. Thanks!” a. There was nothing in Bashore’s employment agreement that specifically authorized him to receive a payment for accrued leave or any special payment. 1. Bashore asserts that he believed he had the authority to receive the payment under his employment agreement and with the Township’s past practice whereby non-union employees are eligible to receive the same benefits as union employees. 54. As a result of Bashore’s direction to Cuthbertson, Radnor Township payroll processed a special payment for Bashore under payroll code 012 for the 2007 annual leave payout. a. Payroll 012 is the Township designation for special payment. b. On November 2, 2007, Check # 80698 was issued to Bashore in the amount of $4,477.25. 1. The check was endorsed and cashed by Bashore on November 1, 2007. 55. Certain Radnor Township Commissioners stated that they did not become aware of the bonus payments until or about the Township meeting of December 15, 2008. 56. In about 2008, expenditures Bashore was making as Manager with regard to the lump sum payments began to be questioned. a. Information was received that Bashore was paying bonuses without the approval of the Board. 57. Minutes of the Radnor Township Board of Commissioner meeting of December 15, 2008, include discussion by the Board on the bonus/lump sum payments authorized by Bashore. a. At this meeting, Bashore never specifically advised the Board that he had received lump sum payments annually since at least 2001. 58. Beginning in or about February 2009 the Board began to question Bashore regarding lump sum payments. a. The Board, in particular, President Masterson, requested documentation from Bashore. 59. As part of a February 9, 2009 (4:33 p.m.) e-mail to all Board members and the Solicitor, Bashore forwarded a file containing his compensation package from 1999 through 2009. a. Bashore’s compilation included lump sum payments as follows: Bashore, 09-011 Page 18 1999 $10,000 2000 $13,000 2001 $12,000 2002 $17,000 2003 $18,000 2004 $17,500 2005 $17,000 2006 $17,000 2007 $15,000 2008 $15,000 b. Bashore explained the lump payments as follows: “Deferred annual payment meant to compensate for extra ordinary number of hours in excess of those required each year (2080), as paid to directors, managers and supervisors; and to provide internal and external pay comparability…” 60. Bashore underreported to the Board the amount of lump payments received in 1999, 2000, 2001 and 2002 by not advising that he had received (2) lump sum payments for each of those years. Year Amount Reported Amount Received 1999 $10,000 $15,300 2000 $13,000 $28,000 2001 $12,000 $30,000 2002 $17,000 $22,000 61. As a result of the information forwarded to the Board via Bashore’s February 9, 2009, e-mail, Board President Masterson sent an e-mail on February 10, 2009, to Bashore directing that Bashore immediately provide the Board with copies of any and all documentation regarding Board discussions and approvals of Bashore’s compensation. 62. Masterson sent an additional e-mail to Bashore and Members of the Board on February 13, 2009, asking for additional explanation regarding the authority for the lump sum payments. 63. On February 16, 2009, Bashore sent a confidential memo to the Board of Commissioners and copied Township Solicitor David Blake regarding the special lump sum payments in which he listed the authority for payments as follows: I’ve always relied on the home rule charter and the administrative code for the granting of general and specific authority regarding regular and special pay adjustments for employees. For example, the charter gives the Manager the power and duty to “[d]irect, supervise, and be responsible for the administration of all departments…”5/ The code generally restates and expands on these powers and duties in Section 5-19, where it says that the Manager may “[p]rescribe such administrative, rules, practices and procedures as shall be deemed necessary or expedient for the conduct and operation of administrative departments…” 6/ The code at §5-60(H)(6) specifically authorizes the payment of a lump sum “bonus” to an employee..for consistently “outstanding performance” or a “meritorious contribution.” 7/ My employment agreement with the Township – and Bob Crofford’s before me – governs the regular and special pay adjustments that I receive. Specifically, Section 5(C) of my contract permits me to receive the same Bashore, 09-011 Page 19 special pay adjustments that are given to other employees. 8/ In other words, the lump sum payments that I have received since I’ve been Manager essentially have been self-executing, Just as important, newer members of the Board may not know that I was the one who suggested that an annual performance review be part of my contract in addition to the requirement for an annual salary review. I think most of us would agree that an annual review is a good business practice in general, no matter what your position is. Plus, I thought it would be essential for my new position as Township Manager to give both the Board and me a formal mechanism to talk about ways that I could improve my performance review as Manager came only three years ago; the only written copy of a review I received from the Board was the one for last year that I received a few weeks ago. I’ve had no formal salary review discussions since my appointment in 1990. 64. Minutes of the Board meeting for February 23, 2009, confirm that the Board discussed the information provided by Bashore regarding the lump sum payments. a. The Board discussed that they were unaware of the policies enacted by Bashore in 2001. b. Bashore admitted to the Board that he never asked for pay increases in the past from the Board and that he never advised or sought approval of the Board for the 2007-2008 lump sum payments. 65. Resolutions were unanimously approved by the Radnor Township Board of Commissioners on March 5, 2009, to request Bashore’s resignation and ultimately to suspend him from his position as Manager. 66. The reasons given for requesting Bashore’s resignation and ultimately suspending Bashore were, among others, that he authorized bonuses to himself identified as “lump sum payments” which were not approved by or disclosed to the Board of Commissioners. 67. On April 6, 2009, Bashore sent a position statement to the Board of Commissioners in which he stated, in part, as follows: Charge # 1 states: “The Manager authorized payment to himself of bonuses [in years 2000 through 2008 totaling $141,500] which were not approved by nor disclosed to the Board of Commissioners.” Charge # 2 states: “The Manager adopted Policy Nos. 01-01, 01-02, and 01- 03 without the consent or approval of the Board of Commissioners.” My answer to this is simple: (a) I did not submit those policies to the Board for approval because the Board, expressly and implicitly, gave me the power to adopt them without express Board approval; and (b) I did authorize those payments to myself because the Board, expressly and implicitly, gave me the power to do so. In hindsight, there is no doubt that, given the changing nature of elected Boards and the shifting winds of political pressure, I made a major error of judgment in not expressly informing and seeking the approval of each new Board concerning the existence of the policies and concerning the individual payments to me before they were made. I accept full responsibility for those errors of judgment. But I reject any suggestion that I ever intended to deceive the Board, or acted beyond my authority as I in good faith understood it. Bashore, 09-011 Page 20 68. On April 13, 2009, the Board unanimously voted to terminate Bashore from his position as Manager as a result of his authorizing lump sum payments to himself without authorization. 69. During his tenure as Manager of Radnor Township, David Bashore used the authority of his public position for private pecuniary gain by annually authorizing lump sum payments to himself and directing subordinate staff to issue payments to him. 70. Bashore asserts that he believed he had the authority to pay lump sum payments to himself without express Board approval pursuant to his contract and certain management representation letters he asserts he provided to all sitting Board Members each year, and the 2002 letter that then Board President James Pierce provided to the Township’s independent auditor. He also asserts that he therefore believed that he could issue such lump sum payments to himself. 71. Bashore’s assertions are not supported by statements made by a majority of the Board, who have stated that Bashore was never given the authority to make lump sum payments to himself. 72. Bashore’s use of the authority of his public position to authorize payments to himself without express Board approval from 2000 and 2008 totaled as follows: Lump Sum Payments: $167,367.00 Special Lump Sum Payment: $ 5,575.22 Accrued Leave Payment: $ 4,477.25 73. The private pecuniary gain realized by David Bashore for the lump sum payments for the time period 2004 to 2008 is $55,331.21. 2004 $12,283.25 2005 $11,032.30 2006 $11,082.30 2007 $10,424.86 2008 $10,508.50 Total: $55,331.21 III.DISCUSSION: As the Manager of Radnor Township (“Township”), Delaware County, from November 13, 2000, to April 13, 2009, Respondent David Bashore (hereinafter also referred to as “Respondent,” “Respondent Bashore,” and “Bashore”) was a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Bashore violated Section 1103(a) of the Ethics Act when he used the authority of his public position as Township Manager for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Township Board of Commissioners (“Board”); and when he directed Township staff to issue annual leave payments to him that were not approved by the Board and were not part of his compensation package. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities Bashore, 09-011 Page 21 (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Background: Respondent Bashore served as the Township Manager from November 13, 2000, to April 13, 2009. Prior to being appointed Township Manager, Bashore served as: Township Finance Director from approximately November 4, 1987, until or about January 1990; Assistant Township Manager from January 1990 to November 13, 2000; and interim Township Manager from in or about the spring of 2000 until his appointment as Township Manager on November 13, 2000. The Township is a First Class Township. It is governed by the Board, which consists of seven Members. The Township operates under a Home Rule Charter (“Charter”). Pursuant to the Charter, the Board fixes the compensation of the Township Manger. Effective January 1, 2001, Bashore entered into an employment contract (“Employment Contract”) with the Township detailing the terms and conditions of his service as Township Manager. The Employment Contract provided for compensation to Bashore as detailed in Fact Finding 11. The Employment Contract provided for any increases in salary, lump sums or other benefits to be determined by the Board. Bashore, 09-011 Page 22 As Township Manager, Bashore was the chief administrative officer of the Township. Bashore’s duties included, inter alia, setting the compensation of subordinate Township employees not covered by a labor agreement and exercising overall supervisory responsibility for the Township Finance Department. The Township Finance Department supervises Township payroll, the maintenance of Township payroll records, and the encumbrance and expenditure of Township funds. Special Pay Adjustments/Lump Sum Payments to Bashore: Prior to his appointment as Township Manager, and at least as early as 1998, Bashore and then Township Manager Robert Crofford (“Crofford”) implemented a “special pay adjustment program,” also referred to as a “lump sum payment program,” whereby lump sum payments were provided to certain Township employees in addition to their salaries. Initially, Bashore and Crofford were the only Township employees to receive such payments. Over the years, the number of employees receiving such payments increased. While serving as Township Manager, Bashore drafted three policies defining criteria for issuing lump sum payments to the Township Manager, department heads, and other employees not in a collective bargaining unit. The criteria in all three policies were developed by Bashore based loosely upon policies originally put into place by Bashore and Crofford. The policies indicate that they were prepared on January 17, 2001. The policies were not provided to the Township Commissioners until February 16, 2009. The policies were not reviewed or approved by the Board prior to being enacted by Bashore. Bashore asserts that he believed at the time that he had the authority to prepare and implement such administrative practices under the Township Code. This was not the belief of certain Members of the Board, who stated that the Board never authorized Bashore to implement the special pay adjustment program. Bashore’s policy for special pay adjustments for the Township Manager, detailed at Fact Finding 33, included as a criterion that a majority of department heads and other eligible employees receive a special payment in the same year. As Township Manager, Bashore authorized lump sum payments to Township department heads, managers, supervisors, and other non-union staff. At the time he was authorizing lump sum payments to subordinate employees, Bashore authorized and issued significantly higher lump sum payments to himself. Bashore asserts that he believed that he had the authority to issue the special lump sum payments. This was not the belief of the majority of the Board, who stated that they had no knowledge of, and did not give Bashore the authority to approve, the special lump sum payments. During Bashore’s tenure as Township Manager, the decision to issue lump sum payments to himself and other employees was made solely by Bashore without Board review or approval. Most Members of the Board were not aware that lump sum payments were being provided to employees, including Bashore. Bashore annually compiled a listing of employees to receive lump sum payments in amounts determined by Bashore. Bashore provided the lists directly to the Township payroll technician until 2007 and to the Township Finance Director thereafter. Bashore advised the payroll technician that the payments were authorized by the Board. Bashore would include on documents authorizing the lump sum payments the language “for your eyes only.” Additionally, Bashore advised Township employees who received the payments that they were to keep the payments confidential. Bashore asserts that the reason that he wanted the lump sum payments to remain confidential was to avoid disruption in the workplace and preserve employee morale. Bashore, 09-011 Page 23 Any budgetary or other information submitted to the Board regarding employee compensation was submitted by Bashore and did not specifically advise the Board that lump sum payments were being made to Bashore or other employees. In order to adjust actual costs of salaries to include lump sum payments, Bashore would credit some or all employee salaries to the miscellaneous expense line item of the Sewer Fund. Bashore affected such transfers through journal entries to Township accounting records. Bashore did not advise the Board that he was reclassifying the money. Bashore authorized the following lump sum payments to himself from 2004 through 2008: (1) in 2004, $17,500.00; (2) in 2005, $17,000.00; (3) in 2006, $17,000.00; (4) in 2007, $15,000.00; and (5) in 2008, $15,000.00. The lump sum payments received by Bashore from 2004 through 2008 totaled $81,500.00 gross and $55,331.21 net. The parties have stipulated that during his tenure as Township Manager, Bashore used the authority of his public position for private pecuniary gain by annually authorizing lump sum payments to himself and directing subordinate staff to issue payments to him. The parties have stipulated that the private pecuniary gain realized by Bashore for the lump sum payments for the time period 2004 to 2008 was $55,331.21. Leave Payments to Bashore: In 2006 and 2007 Bashore directed that he be issued additional payments from the Township in the nature of leave payouts. On December 10, 2006, Bashore directed the Township payroll technician to issue to him an extra 2 weeks (70 hours) pay from his personal leave balance. On December 28, 2006, Bashore received such compensation, totaling $5,575.22 for 70 hours of pay, as part of check number 75669. On October 24, 2007, Bashore sent an e-mail to the Township Finance Director with the subject line, “For your eyes only please,” claiming that he was contractually entitled to an annual “special payment” equal to two weeks’ pay and directing that such payment be made to him and attributed to vacation leave. In accordance with Bashore’s directive, on November 2, 2007, the Township issued a special payment to Bashore in the amount of $4,477.25 as a leave payout. The check was endorsed and cashed by Bashore on November 1, 2007. There was nothing in Bashore’s Employment Contract that specifically authorized him to receive a payment for accrued leave or any “special payment.” The Termination of Bashore’s Service as Township Manager: The bonus/lump sum payments authorized by Bashore became the subject of Board discussions at the Board’s December 15, 2008, meeting. Following inquiries from the Board, and Bashore’s submission to the Board of various information and explanations, the Board voted on April 13, 2009, to terminate Bashore from his position as Township Manager as a result of his authorizing lump sum payments to himself without authorization. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a) of the Public Bashore, 09-011 Page 24 Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Bashore used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Radnor Township Board of Commissioners; and when he directed Township staff to issue annual leave payments to him that were not approved by the Board of Commissioners and were not part of his compensation package. 4. Bashore agrees to make payment in the amount of $55,331.21 in settlement of this matter payable to Radnor Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement, we agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred when Respondent Bashore used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Board, and when he directed Township staff to issue leave payments to him that were not approved by the Board and were not part of his compensation package. Bashore used the authority of his public position when he authorized and issued lump sum payments to himself that had not been approved by the Board. Bashore unilaterally determined to issue lump sum payments to himself. Bashore unilaterally determined the amounts of such payments. Bashore directed subordinate staff (the Township payroll technician and subsequently the Township Finance Director) to process the payments. Bashore advised the payroll technician that the payments were authorized by the Board. Bashore took steps to keep the lump sum payments confidential. Additionally, budgetary and other information submitted to the Board by Bashore did not specifically advise the Board that lump sum payments were being made to Bashore or other employees. Bashore reclassified money in Township accounting records to provide for the payments. Bashore did not advise the Board that he was reclassifying the money. Most Members of the Board were not aware that lump sum payments were being provided to employees, including Bashore. But for being the Township Manager, Bashore would not have been in a position to obtain the lump sum payments for himself. The parties have stipulated that during his tenure as Township Manager, Bashore used the authority of his public position for private pecuniary gain by annually authorizing lump sum payments to himself and directing subordinate staff to issue payments to him. The parties have stipulated that the private pecuniary gain realized by Bashore for the lump sum payments for the time period 2004 to 2008 was $55,331.21. Bashore, 09-011 Page 25 As for the 2006 and 2007 leave payments to Bashore, Bashore used the authority of his public position by directing the Township payroll technician and the Township Finance Director to issue such payments to him as payouts from his personal leave balance and vacation leave. But for being the Township Manager, Bashore would not have been in a position to obtain such payments for himself. The payouts constituted a private pecuniary benefit to Bashore. There was nothing in Bashore’s Employment Contract that specifically authorized him to receive a payment for accrued leave or any “special payment.” Cf., Smith, Order 1342. With each element of a violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Bashore used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Board, and when he directed Township staff to issue leave payments to him that were not approved by the Board and were not part of his compensation package. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $55,331.21 payable to Radnor Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Respondent Bashore is directed to make payment in the amount of $55,331.21 payable to Radnor Township and th forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As the Manager of Radnor Township (“Township”), Delaware County, from November 13, 2000, to April 13, 2009, Respondent David Bashore (“Bashore”) was a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Bashore violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Township Board of Commissioners (“Board”), and when he directed Township staff to issue leave payments to him that were not approved by the Board and were not part of his compensation package. In Re: David Bashore, : File Docket: 09-011 Respondent : Date Decided: 10/19/10 : Date Mailed: 10/22/10 ORDER NO. 1563 1. David Bashore (“Bashore”), a public official/public employee in his capacity as the Manager of Radnor Township (“Township”), Delaware County, from November 13, 2000, to April 13, 2009, violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for private pecuniary benefit by annually authorizing lump sum payments to himself without the approval of the Township Board of Commissioners (“Board”), and when he directed Township staff to issue leave payments to him that were not approved by the Board and were not part of his compensation package. 2. Per the Consent Agreement of the parties, Bashore is directed to make payment in the amount of $55,331.21 payable to Radnor Township and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 3. Compliance with Paragraph 2 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ John J. Bolger, Vice Chair Chair Louis W. Fryman did not participate in this matter.